International Criminal Law – michaelgkarnavas.net/Blog

Bolton threatens the International Criminal Court: gunboat diplomacy by other means

The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.

John Bolton, US National Security Advisor

John Bolton’s “happiest moment” as the US Ambassador to the United Nations (UN), so he claims, was when he “personally ‘unsign[ed]’ the Rome Statute” that established the International Criminal Court (ICC).¹ John Bolton, Surrender Is Not an Option: Defending America at the United Nations and Abroad, Threshold 2007, as cited by Brian Urquest, One Angry Man, New York Review of Books, March 6, 2008, pp. 12–15. This is the same John Bolton who once said that if the UN Secretariat building in New York “lost ten stories, it woul dn’t make a bit of difference.” And believe it or not, this statement would later bring hope to some of the accused (and some of their lawyers) at the International Criminal Tribunal for the former Yugoslavia (ICTY) when Bolton became US Ambassador to the UN; they naively thought that Bolton would lead the charge to dismantle the ICTY. I was flabbergasted hearing these ludicrous expectations, yet Bolton’s remarks had captured their imagination.

Continue reading “Bolton threatens the International Criminal Court: gunboat diplomacy by other means”

Footnotes [ + ]

The ICC’s Ruling on the OTP’s Rohingya Request over Jurisdiction: well-reasoned or a judicial overreach?

On 6 September 2018, the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) held by Majority (Judge Marc Perrin de Brichambaut dissented in part) that the ICC has jurisdiction over some of the mass atrocity crimes allegedly committed (and, as some may argue, still being committed) in Myanmar against the Rohingya. This comes on the heels of the UN Human Rights Council’s conclusions that violations in Rakhine State (and elsewhere) in Myanmar amounted to the gravest crimes under international law, and, more alarmingly, that certain “clearance operations” conducted by the Myanmar Military (known as “Tatmadaw”) were not a response to a concrete threat from the Arakan Rohingya Salvation Army (ARSA), but the “unfinished job” of “solv(ing) the long-standing Bengali problem” thus warranting an investigation and prosecution of the senior officials in the Tatmadaw chain of command “so that a competent court can determine their liability for genocide in relation to the situation in Rakhine State.” (See Report of the Independent International Fact-Finding Mission on Myanmar, Advance Unedited Version, A/HRC/39/64, 24 August 2018, paras. 86-87.) Continue reading “The ICC’s Ruling on the OTP’s Rohingya Request over Jurisdiction: well-reasoned or a judicial overreach?”

The ICC’s Palestinian Outreach Campaign: an appearance of anti-Israel bias

THE CHAMBER HEREBY

a) ORDERS the Registry, to establish, as soon as practicable, a system of public information and outreach activities for the benefit of the victims and affected communities in the situation in Palestine and report back to the Chamber in compliance with the principles established in the present decision;

ICC, Decision on Information and Outreach for the Victims of the Situation, 13 July 2018

According to The Times of Israel, Israel has formally complained to the International Criminal Court (ICC) about the outreach program the ICC Registry is launching at the behest of the Pre-Trial Chamber (Judge Péter Kovács Presiding, Judge Marc Perrin de Brichambaut, and Judge Reine Adélaïde Sophie Alapini-Gansou) “for the Victims of the Situation” in Palestine, calling into question the ICC’s impartiality in treating Israel fairly. What took so long?

Israel has a point. And a predicament. Continue reading “The ICC’s Palestinian Outreach Campaign: an appearance of anti-Israel bias”

ICC-OTP to Interveners on its Rohingya Request: thanks but you’re putting the cart before the horse

Prompted by ongoing reports of mass-scale atrocities being committed against the Rohingya in Myanmar, resulting in at least 700,000 Rohingya fleeing across the border to Bangladesh (what UN High Commissioner for Human Rights characterized as “a textbook example of ethnic cleansing”), the Office of the Prosecutor (“OTP”) of the International Criminal Court (“ICC”) filed a Request with the Pre-Trial Chamber (“PTC”) under Article 19(3) of the Rome Statute. The Request seeks a binding decision on whether the ICC has jurisdiction over the alleged deportation of the Rohingya from Myanmar (a non-State Party) to Bangladesh (a State Party). The Request set out in detail the events in Myanmar as they have been reported over the past year or so (see my previous posts here, here, here, and here), that Myanmar security forces have directly and indirectly been involved in the killing, rape, torture, and enforced disappearances of the Rohingya, as well as destruction and looting of their villages. Continue reading “ICC-OTP to Interveners on its Rohingya Request: thanks but you’re putting the cart before the horse”

The Non-Reappointment of Judge Akay: a blow to judicial independence

If States are permitted to take action against a Judge in violation of the applicable international legal framework, judicial independence—a cornerstone principle of the rule of law—and the integrity of our court as such are fundamentally at risk, as is the overall project of international criminal justice.

Judge Theodor Meron, MICT President

Kudos to Judge Theodor Meron for standing up for Judge Aydin Sefa Akay, and more importantly, for judicial independence. Let’s hope his admonitions do not amount to a lone cry in the wilderness of international justice.

How cowardly. Don’t count on the UN (here I am lumping in the Secretary-General, the General Assembly, and, especially, the Security Council) to live up to its obligations and show some backbone – even when failing to do so undermines its legitimacy and authority. All talk, no walk. Continue reading “The Non-Reappointment of Judge Akay: a blow to judicial independence”

The Reversal of Bemba’s Conviction: what went wrong or right?

On 8 June 2018, after a 10-year odyssey of proceedings, hundreds of submissions (oral and written), roughly 48 months of trial, 77 witnesses, 733 admitted items of evidence, 1219 written trial decisions and orders, and at the expense of an incredible amount of human and financial resources, Jean-Pierre Bemba Gombo was acquitted by the International Criminal Court (ICC) Appeals Chamber of all charges (murder and rape as crimes against humanity, murder and rape as war crimes, and pillaging as a war crime) that he was unanimously convicted of by Trial Chamber III (Presiding Judge Sylvia Steiner, Judge Joyce Aluoch, and Judge Kuniko Ozaki).

It was as close of a call as could be: a 3-2 split. One member of the Majority (now President of the ICC, Judge Chile Eboe-Osuji) was initially inclined to order a retrial, although the “balance of justice impel[led]” him to join the Majority’s decision to acquit Mr. Bemba. Continue reading “The Reversal of Bemba’s Conviction: what went wrong or right?”

Will do Mr. Prime Minister – An imagined dialogue between the Prime Minister and the Head of the Ministry of Foreign Affairs on the Palestinian Authority’s ICC referral

On 22 May 2018, the Palestinian Authority (PA) filed a referral to the International Criminal Court’s (ICC) Office of the Prosecutor (OTP), requesting it “to investigate, in accordance with the temporal jurisdiction of the Court, past, ongoing and future crimes within the court’s jurisdiction, committed in all parts of the territory of the State of Palestine.”

ICC Prosecutor, Mrs Fatou Bensouda and her team meet the Minister of Foreign Affairs and Expatriates of Palestine, H.E. Dr Riad Malki and delegation at the Court’s Headquarters

After learning of the referral and after seeing what was being reported by the major news outlets, Prime Minister of Israel Benjamin Netanyahu (PM) may have contacted Legal (referred to as “L.”) from the legal office of the Ministry of Foreign Affairs, asking to be briefed on the legal ramifications of the referral. Their meeting might have gone something like this: Continue reading “Will do Mr. Prime Minister – An imagined dialogue between the Prime Minister and the Head of the Ministry of Foreign Affairs on the Palestinian Authority’s ICC referral”

Book Review – RISE AND KILL FIRST: The Secret History of Israel’s Targeted Assassinations

Book Review – RISE AND KILL FIRST: The Secret History of Israel’s Targeted Assassinations, by Ronen Bergman, Random House, 2018, $35.00, 725 pages.

Assassinations … have an effect on morale, as well as a practical effect. I don’t think there were many who could have replaced Napoleon, or a president like Roosevelt or a prime minister like Churchill. The personal aspect certainly plays a role. It’s true that anyone can be replaced, but there’s a difference between a replacement with guts and some lifeless character.

Meir Dagan, Chief of the Israeli Mossad (p. xix)

The distinguishing mark of a manifestly illegal order … is that above such an order should fly, like a black flag, a warning saying: ‘Prohibited!’ Not merely formally illegal, not covered up or partly covered … but an illegality that stabs the eye and infuriates the heart, if the eye is not blind and the heart is not obtuse or corrupt.

Judge Benjamin Halevy (p. 274)

Targeted killings, assassinations, summary executions and reprisal killings; acts of assassination without parliamentary or public scrutiny; unrestrained killings and orders to down passenger airlines with innocent civilians; strikes against foreign diplomats; two separate legal systems – one for ordinary citizens and one for the intelligence community and defense establishment; bombings of hotels, buildings, and residences; preemptive strikes, kidnappings, and killings of political leaders; invoking “state security” to justify a large number of acts that could be subject to criminal prosecution and long prison sentences; massive amounts of unavoidable or unreasonable collateral deaths; deceptions, and lies to the Prime Ministers, including cover-ups and willful blindness by Prime Ministers themselves; killings of scientists, sympathizers, and poisonings; disregard for practice directives for state-sanctioned assassinations; manifestly unlawful orders and reprimanding those who refused to follow such orders; use of proxies to carry out assassinations, torture, and degrading interrogations; killings of unarmed prisoners, and much more.

-versus-

Indiscriminate attacks against innocent civilians; targeted killings; car bombings and using other explosives to cause maximum death of innocent civilians; suicide bombers and proxy fighters financed by antagonistic neighboring countries; acts causing maximum and sustained terror; provocations to draw military responses and loss of innocent civilian lives; rocketing of residential areas, use of civilians as human shields, building of nuclear reactors, and threats of annihilation; kidnappings of soldiers to torture and kill or to swap for hardened imprisoned militants whose aim upon release would be to continue their terrorist acts and killings, hijackings, car-bombings, senseless executions, deceptions, lies, broken promises, and blatant denials of knowing that some on their side committed atrocities while claiming to be pursing peace, and much more. Continue reading “Book Review – RISE AND KILL FIRST: The Secret History of Israel’s Targeted Assassinations”

HASPEL’S CIA NOMINATION: legality v. morality in the balance

CIA follows the law. We followed the law then. We follow the law today.

Gina Haspel, US Senate Intelligence Committee Confirmation Hearing, 9 May 2018

Gina Haspel is supremely qualified to be the next director of the US Central Intelligence Agency (CIA). For the past 33 years, she has worked her way up the CIA ladder from entry-level operative to station chief to Deputy Director. We do not know most of what she has done because the CIA – per its directives to which Haspel, as the current Acting CIA Director, is adhering – will not release most of the classified information in its files on Haspel’s activities. We do know however that she was directly – and some may say enthusiastically – involved in the CIA’s post 9/11 (2001) rendition, detention, and interrogation program, where torture (euphemistically referred to as enhanced interrogation techniques) was used with exuberant abandon.

If only the selection process for the next CIA Director was based solely on qualifications. Thankfully, it is not. Continue reading “HASPEL’S CIA NOMINATION: legality v. morality in the balance”

Part II – Panel Discussion on The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict

Prosecutorial Discretion & The Interests of Justice: what, when, how

In my previous post I reviewed Priscilla Hayner’s The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict, giving it a superb rating and recommending it to anyone working in the field of transitional justice – from mediators to civil society and human rights advocates. As I noted, Hayner draws from her wealth of experience and from her in-depth and critical examination of past efforts by various actors in the peacemaking and transitional justice chain, including international(ized) criminal tribunals and courts – most notably the International Criminal Court (ICC) – to see what has worked or failed in peacemaking. Presenting a clinical analysis of the what, how, and why of these past examples, Hayner shows that during peacemaking efforts, process matters, intrinsic to which are timing, strategy, and context. This is particularly relevant when the ICC Prosecutor exercises her authority: depending on the strategy and tactics adopted, she can be instrumental or detrimental to the peacemaking process. Continue reading “Part II – Panel Discussion on The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict”